Citation Nr: 1318458 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-36 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus and post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active duty from September 1968 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the St. Louis, Missouri, regional office (RO) of the Department of Veterans Affairs (VA). In his substantive appeal, the Veteran requested a hearing before the Board sitting at the local RO. However, his request for a hearing was later withdrawn in a June 2010 communication. The current issues were among those previously before the Board in September 2010. At that time, service connection was awarded for bilateral sensorineural hearing loss and for tinnitus at that time. This represents a complete grant of the benefits sought on appeal for those issues, and they are no longer on appeal. Entitlement to a 70 percent evaluation for PTSD was also granted by the Board. This decision is final, and the evaluation of the Veteran's PTSD is no longer in appellate status. 38 U.S.C.A. § 7104(b) (West 2002 & Supp. 2012). The September 2010 Board decision also remanded the issues of service connection for hypertension and entitlement to TDIU for further development. The requested development has been completed, and these appeals have been returned for further review. Finally, the September 2010 Board decision referred the issue of entitlement to service connection for peripheral neuropathy of the upper extremities to the RO for initial consideration. Service connection for this disability was established in a January 2012 rating decision. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. Hypertension was not shown during active service or until many years after discharge from active service, and there is no competent medical opinion that relates hypertension to active service. 2. Competent medical opinion states that the Veteran's hypertension was not caused by his service connected PTSD or his service connected diabetes mellitus; nor did it undergo a permanent increase in severity due to the service connected PTSD or service connected diabetes mellitus. 3. The Veteran's service connected disabilities include PTSD, evaluated as 70 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; peripheral neuropathy of the lower left extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral sensorineural hearing loss, erectile dysfunction, and peripheral neuropathy of the bilateral upper extremities, each evaluated as zero percent disabling; the Veteran has a combined evaluation of 80 percent disabling. 4. Competent medical opinion states that the Veteran's service connected disabilities preclude him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for hypertension have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310(a) (2012). 2. The criteria for a total disability rating based on individual unemployability due to service connected disabilities have been met. C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in August 2006 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini, for the issue of service connection for hypertension. This letter was provided to the Veteran prior to the initial adjudication of his claim. Although the notification regarding entitlement to service connection on a secondary basis was not provided until an April 2007 letter, this does not result in any harm to the Veteran, as his claim has been readjudicated since receipt of the notification. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify for the claim for service connection for hypertension has been met. In regards to the claim for TDIU, as the Board will grant this appeal, there is no harm in any failure in the duty to notify that may have occurred. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. Records have been obtained from the Social Security Administration (SSA). He was afforded appropriate VA examinations, and relevant opinions have been obtained from the examiners after a review of the claims folder. The Board notes that while opinions have been obtained that address whether or not the Veteran's hypertension is due to either his service connected diabetes mellitus or PTSD, there is no opinion that addresses whether or not this disability is directly due to service. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. In this case, the record does not contain any competent evidence that indicates that hypertension or signs or symptoms of hypertension may be associated with active service. As will be seen, there is no evidence of high blood pressure in service or until many years after discharge, the Veteran himself indicates that this disability first began over 30 years after discharge, and there is no competent evidence that relates hypertension to service. Therefore, even the low threshold for finding a link between hypertension and service has not been met, and an opinion to address service connection on a direct basis is not necessary. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. Service Connection The Veteran contends that his hypertension was caused by either his service connected diabetes or his service connected PTSD, or that it was aggravated by one of these two service connected disabilities. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. If cardiovascular-renal disease to include hypertension manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of hypertension during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be applied with respect to the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted, these disabilities include hypertension. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) At this juncture, the Board notes that the Veteran's primary contention is that his hypertension has developed secondary to his service connected diabetes mellitus or service connected PTSD. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as tinnitus, hand pain, and shortness of breath, the Veteran is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). A review of the Veteran's service treatment records shows that hypertension was not diagnosed during active service, and there is no evidence of complaints or findings pertaining to hypertension in service. The blood pressure readings were all within normal limits on the June 1970 discharge examination, and the Veteran answered "no" to a history of high or low blood pressure on the Report of Medical History obtained at that time. The post service medical records are also negative for hypertension until many years after discharge from service. VA treatment records dated 2003 note that the Veteran had not seen a physician regularly for the last 15 years. He had currently experienced elevated blood pressure at VA on two occasions. By 2006, VA treatment records regularly included a diagnosis of hypertension. The Veteran's August 2006 claim indicates that hypertension began in 2004. The record includes an August 2006 pre-printed Physician's Statement from a VA physician who was treating the Veteran for his diabetes. The physician checked the line that states the Veteran currently has no complications that are directly due to diabetes mellitus. The unchecked options include cardiovascular and renal complications. The Veteran was afforded a VA examination of his hypertension in May 2007. He could not give a definitive history as to how hypertension was diagnosed, but it was gathered from the medical records that it had been present since at least 2003. It was well controlled. After the examination and record review, the examiner opined that the hypertension was not permanently worsened beyond its natural progression by diabetes mellitus. The examiner added that there was no evidence of worsening of hypertension, from any cause, beyond its natural progression. The Veteran was afforded an additional VA examination of his hypertension in February 2012. At that time, the examiner opined that it was less likely than not that the Veteran's hypertension was proximately due to or the result of the Veteran's service connected disabilities. The examiner explained that the hypertension was diagnosed prior to the development of diabetes mellitus. The hypertension was well controlled and there was no evidence that it was worse than it was prior to the development of diabetes. The Veteran's history of smoking, obesity, and inactivity were the more likely causes of hypertension. The Veteran was noted to have a long history of PTSD, but his hypertension developed no earlier than approximately 15 years prior to the 2003 primary care visit, even though he had experienced PTSD since combat. Given these reasons, it was less likely than not that either the diabetes or PTSD caused or permanently aggravated the hypertension. The Board finds that entitlement to service connection for hypertension is not warranted. The Veteran currently has a well established diagnosis of hypertension. Therefore, he has met the first requirement for service connection. However, the service treatment records are completely negative for diagnoses or complaints pertaining to hypertension. The post service medical records are negative for a diagnosis of hypertension prior to 2003, and the Veteran believes that this disability began in either 2003 or 2004. The 2003 outpatient record noted an absence of medical care in the 15 years prior to that visit- even if hypertension was manifested during that timeframe, that would place the inset, at the earliest, in approximately 1998. Therefore, entitlement to service connection on a presumptive basis as a chronic disease is not demonstrated. Furthermore, there is no evidence of continuity of symptomatology. Similarly, entitlement to service connection on a presumptive basis due to herbicide exposure or on the basis of a medical nexus established by a competent opinion is also precluded. The Veteran made a single reference to hypertension and Agent Orange in his November 2007 notice of disagreement, but hypertension is not among the diseases that are presumed to be the result of exposure to herbicides such as Agent Orange. See 38 C.F.R. § 3.309(e). There is no medical opinion that relates the Veteran's hypertension directly to active service on any basis, including as due to herbicide exposure. The preponderance of the evidence is against entitlement to service connection for hypertension as related directly to active service. At this point, the Board acknowledges that the Veteran's primary contention has been that his hypertension was either caused or aggravated by his service connected diabetes mellitus or PTSD. The claim also fails on this basis, as it is not supported by any competent medical opinion. There are three VA medical opinions that address whether there is a relationship between the Veteran's hypertension and either his service connected diabetes mellitus or PTSD. The August 2006 VA examiner indicated that the Veteran currently had no complications that are directly due to diabetes mellitus. The May 2007 VA examiner opined that the Veteran's hypertension was not permanently worsened beyond its natural progression by diabetes mellitus. Finally, and most definitively, the February 2012 examiner opined it was less likely than not that either the diabetes or PTSD caused or permanently aggravated the hypertension. This examiner provided a rationale to support the opinion, which was based on when hypertension first developed in relationship to the service connected disabilities at issue, and on the fact that the hypertension has been well controlled. There is no competent opinion to the contrary. The Board recognizes the Veteran's sincere belief that his service connected diabetes or PTSD caused or aggravated the hypertension, but he is not competent to provide evidence as to more complex medical questions, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). As with the claim for service connection on a direct basis, the preponderance of the evidence is against the Veteran's claim for service connection for hypertension secondary to either his service connected diabetes mellitus or PTSD. TDIU The Veteran contends that his service connected disabilities combine to render him unemployable. The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Pursuant to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16(b). The Veteran's service connected disabilities include PTSD, evaluated as 70 percent disabling; diabetes mellitus, evaluated as 20 percent disabling; peripheral neuropathy of the lower left extremity, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral sensorineural hearing loss, erectile dysfunction, and peripheral neuropathy of the bilateral upper extremities, each evaluated as zero percent disabling. The Veteran has a combined evaluation of 80 percent disabling. As the Veteran has a single disability ratable as 70 percent and a combined evaluation of 80 percent, he meets the schedular requirements for TDIU. It must still be determined whether or not these service-connected disabilities combine to render him unemployable. The Veteran was afforded a VA general medical examination in February 2011 in order to determine the combined effect of his service connected disabilities on his employability. He was noted to have a history of diabetes, PTSD, and peripheral neuropathy, as well as nonservice connected low back pain, chronic obstructive pulmonary disease (COPD), and the residuals of a cerebral vascular accident. After completion of the examination and review of the record, the examiner opined that the Veteran's diabetes, hypertension, and PTSD would not render him unemployable. However, his neuropathy would cause him problems with any employment that demanded physical activity. A separate January 2011 examination of the Veteran's hearing found that there was nothing related to hearing loss or tinnitus that would preclude gainful employment. An additional opinion was received in August 2011 from the VA doctor who has treated the Veteran for his PTSD for the past five years. In addition to the doctor, the Veteran was noted to have been evaluated by a psychologist and a social worker. The staff strongly felt that the Veteran was unemployable due to his chronic PTSD and other service connected disabilities. The Board finds that the evidence supports entitlement to TDIU. The record contains two opinions that address the Veteran's employability. The February 2011 opinion found that the Veteran's service connected disabilities do not prevent him from being employed, while the August 2011 opinion from the VA doctor who has been treating the Veteran found that these same disabilities do prevent him from being employed. The Board finds that the August 2011 opinion more persuasive. This opinion was written by the medical doctor who has been treating the Veteran for his PTSD for five years. This doctor also indicates that a psychologist and a social worker who are part of the Veteran's treatment team concur in this opinion. Finally, while they treat the Veteran for PTSD, the opinion clearly encompasses all of the Veteran's service connected disabilities, and as a medical doctor this examiner is competent provide an opinion that includes all disabilities. In contrast, the February 2011 opinion was written by a sole nurse practitioner who had examined the Veteran for the first time. Although she performed thorough examination that included a review of the claims folder and every system of the body, the Board defers to the higher degree of training and familiarity with the Veteran's impairments of the August 2011 doctor. The Board finds that the August 2011 opinion is the most probative, and that entitlement to TDIU is warranted. ORDER Entitlement to service connection for hypertension, to include as secondary to service connected diabetes mellitus and PTSD, is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs